HIS HONOUR: By summons, issued on 5 March 2020, the plaintiff (Nauer) moves the Court for an order under s 8(7) of the Vexatious Proceedings Act 2008 (NSW) (the Act) that the defendant (Batterham) be prohibited from instituting proceedings in New South Wales against Nauer.
This application is closely connected to proceedings commenced by Finsec as Trustee of the Batterham Retirement Fund against Nauer: Finsec as Trustee of the Batterham Retirement Fund v Marcel Andre Nauer [No 2] [2020] NSWSC 238 (the principal proceedings). For reasons which appear in that judgment, which will be delivered immediately before this judgment, the principal proceedings now stand dismissed.
References below to sections are to the Act.
The relevant sections are ss 4, 6, 8, and 13(1). They provide:
4 Meaning of "proceedings"
In this Act, proceedings includes:
(a) any civil proceedings, criminal proceedings or proceedings before a tribunal, and
(b) any cause, matter, action, suit, proceedings, trial, complaint or inquiry of any kind within the jurisdiction of any court or tribunal, and
(c) any proceedings taken in connection with or incidental to proceedings pending before a court or tribunal, and
(d) any interlocutory proceedings or applications, or procedural applications, taken in connection with or incidental to civil proceedings, criminal proceedings or proceedings before a tribunal, and
(e) any calling into question of a decision, whether or not a final decision, of a court or tribunal, and whether by appeal, challenge, review or in another way.
6 Meaning of "vexatious proceedings"
In this Act, vexatious proceedings includes:
(a) proceedings that are an abuse of the process of a court or tribunal, and
(b) proceedings instituted to harass or annoy, to cause delay or detriment, or for another wrongful purpose, and
(c) proceedings instituted or pursued without reasonable ground, and
(d) proceedings that are conducted to achieve a wrongful purpose, or in a way that harasses, or causes unreasonable annoyance, delay or detriment, regardless of the subjective intention or motive of the person who instituted the proceedings.
8 Making of vexatious proceedings order
(1) When orders may be made An authorised court may make an order under this section (a vexatious proceedings order) in relation to a person if the court is satisfied that:
(a) the person has frequently instituted or conducted vexatious proceedings in Australia, or
(b) the person, acting in concert with a person who is subject to a vexatious proceedings order or who is referred to in paragraph (a), has instituted or conducted vexatious proceedings in Australia.
(2) For the purposes of subsection (1), an authorised court may have regard to:
(a) proceedings instituted or conducted in any Australian court or tribunal (including proceedings instituted or conducted before the commencement of this section), and
(b) orders made by any Australian court or tribunal (including orders made before the commencement of this section), and
(c) evidence of the decision, or a finding of fact, of any Australian court or tribunal hearing such proceedings or making such orders, even if that evidence would otherwise not be admissible by virtue of section 91 of the Evidence Act 1995.
(3) An authorised court must not make a vexatious proceedings order in relation to a person without hearing the person or giving the person an opportunity of being heard.
(4) Orders may be made on court's own motion or on application An authorised court may make a vexatious proceedings order of its own motion or on the application of any of the following persons:
[…]
(d) a person against or in relation to whom another person has instituted or conducted vexatious proceedings;
[…]
(7) Orders that may be made by Supreme Court The Supreme Court may make any one or more of the following vexatious proceedings orders in relation to a person:
(a) an order staying all or part of any proceedings in New South Wales already instituted by the person,
(b) an order prohibiting the person from instituting proceedings in New South Wales,
(c) any other order that the Court considers appropriate in relation to the person
[…]
13 Contravention of vexatious proceedings order prohibiting institution of proceedings
(1) If an authorised court makes a vexatious proceedings order prohibiting a person from instituting proceedings:
(a) the person may not institute proceedings of the kind to which the order relates without the leave of an appropriate authorised court under section 16, and
(b) another person may not, acting in concert with the person, institute proceedings without the leave of an appropriate authorised court under section 16.
[…]
Section 16 sets out the procedure for obtaining leave to institute proceedings.
Batterham's companies are his mere cypher. He is the person who has stood behind all the proceedings that have been brought against Nauer and he has conducted them. He has plagued Nauer for years by conducting unsuccessful proceedings, including motions and appeals in this and other courts: Finsec Pty Limited as Trustee of the Batterham Retirement Fund v Marcel Andre Nauer [2019] NSWSC 1831.
Batterham, through his company Maylord, commenced proceedings in this list on 19 December 2014 (Batterham was a bankrupt at the time). A new director, Mr Ohlson, was appointed to Maylord and I gave him leave to conduct the proceedings. Maylord failed to comply with directions and I dismissed the proceedings on 24 April 2015, on terms that it was without prejudice to it recommencing them within 12 months. Maylord recommenced two days before the expiry of the 12 months.
On 24 October 2016, Bergin CJ in Eq struck out the Commercial List Statement and ordered Maylord to pay Nauer's costs, fixed at $25,000, prior to filing any proposed amended pleading. Maylord moved by motion to set those orders aside. On 6 February 2017, I dismissed the motion with costs, but I was told that more information which could sustain the motion might be available and I gave leave for it to be remotivated within six months. Maylord was thus given another indulgence. Maylord filed a further Notice of Motion, which I dismissed on 7 April 2017 when Maylord did not appear. On that day, Maylord filed a Notice of Motion seeking to set aside my orders.
On 28 April 2017 Nauer filed a Notice of Motion seeking orders that the proceedings be stayed or dismissed because under superannuation legislation Maylord lacked authority to represent a superannuation fund as a consequence of Batterham's bankruptcy. Batterham had been made bankrupt on 13 November 2014.
On 12 May 2017, Ward CJ in Eq found that Maylord did not have authority: Maylord Equity Management Pty Limited as trustee of the Batterham Retirement Fund v Nauer [2017] NSWSC 634. Her Honour dismissed Maylord's Notice of Motion and made a costs order in favour of Nauer for $55,000.
On 2 August 2017, Nauer filed a Notice of Motion seeking an order that the proceedings be dismissed for want of prosecution and that Batterham pay part of the costs.
On 6 November 2017, Slattery J dismissed Maylord's proceedings for want of due dispatch, and ordered Batterham to pay part of Nauer's costs: Maylord Equity Management Pty Limited as trustee of the Batterham Retirement Fund v Nauer (No 2) [2017] NSWSC 1467. Slattery J assessed Batterham's share of those costs as $163,456.71.
On 13 December 2017, Maylord filed a Notice of Motion seeking that Slattery J's orders be set aside. On 2 February 2018, I dismissed it with costs. Maylord and Batterham sought leave to appeal from the Court of Appeal in relation to the orders of Bergin CJ in Eq, Ward CJ in Eq and Slattery J. That Court refused leave on 10 April 2018: Maylord Equity Management Pty Limited as trustee of the Batterham Retirement Fund v Nauer [2018] NSWCA 76.
On 24 May 2018, Nauer served Batterham with a Bankruptcy Notice. Batterham then moved the Federal Court of Australia to set aside the Bankruptcy Notice. In those proceedings he sought to raise by cross-claim the substance of the claim in the proceedings dismissed by Slattery J.
On 8 June 2018, Batterham commenced new proceedings in the Federal Court by Originating Application and Statement of Claim, this time in his own name, against Nauer, seeking to vindicate the same grievance.
On 11 April 2019, Gleeson J of the Federal Court dismissed Batterham's proceedings: Batterham v Nauer, in the matter of Peter James Batterham [2019] FCA 485. Her Honour described his claims for relief as being either misconceived or doomed to fail. Her Honour considered that his pleading did not disclose any reasonable cause of action and, on the available evidence, there was no reason to believe that Batterham had a viable cause of action against Nauer.
Batterham sought leave to appeal from Gleeson J's judgment out of time. This extension was refused by Flick J on 10 October 2019: Batterham v Nauer, in the matter of Peter James Batterham [2019] FCA 1648.
Some of the correspondence which has emanated from Batterham is set out in the first judgment. It is appropriate to set it out again with further examples added where relevant.
On 27 January 2017 Batterham emailed Nauer's solicitor:
"I tell you you fucking arsehole, I do all I can to destroy you."
In an email to the solicitor of 22 April 2017, he wrote:
"This matter has a long way to go, my friend, and I have nothing to lose."
In an email to the solicitor of 27 May 2017, he wrote:
"I am 69 years old and living on a pension. I have nothing to lose by causing Nauer as much pain as I can, as he took away my retirement nest egg for reasons that I am unable to fathom."
On 29 October 2017, Batterham wrote to Nauer's solicitor, relevantly,
"…the statute of limitation is not an issue and we can always file a new claim based on a different cause of action
Sleep well working for a client like Nauer that your firm acted for in perpetrating a crime against a minority shareholder in February 2011
As you know we do not give up in brining [sic] the likes of Nauer to account. More to come
Cheers"
In an email to the solicitor on 12 April 2018, he wrote:
"I suggest that you do not tell Nauer that it is all over, as it is not. I am now moving to plan B."
(I interpolate that when I asked Mr Batterham what plan B was, he said "these proceedings").
In an email to the solicitor on 24 May 2018, he wrote:
"By now you will realise that I am not going away.
As such, I imagine I will be seeing you on many more occasions in various courts."
Batterham has expressly stated that:
he will do all he can to destroy Nauer's solicitor;
he has nothing to lose by causing Nauer as much pain as he can; and
he is not going away.
Batterham has conducted (either alone or through his companies) proceedings within the meaning of s 4 against Nauer no less than nine times, all in connection with the same underlying grievance. He has been refused leave to appeal orders of this Court and of the Federal Court of Australia. His claims for relief have been described by a judge of that Court as being either misconceived or doomed to fail, an observation with which I respectfully agree. Those proceedings were vexatious because they were instituted or pursued without reasonable ground.
The principal proceedings were vexatious because they were:
1. an abuse of the process of the court because they sought to assuage complaints already made in earlier proceedings and dismissed, and in proceedings brought in the Federal Court of Australia and dismissed;
2. instituted to harass, annoy, and to cause detriment to Nauer;
3. instituted without reasonable ground;
4. conducted in a way that harassed, and caused unreasonable annoyance and detriment, to Nauer.
The calling into question of the decisions of Bergin CJ in Eq., Ward CJ in Eq., and Slattery J was without reasonable ground and vexatious.
The bringing of the principal proceedings and the proceedings in the Federal Court of Australia are in themselves sufficient to satisfy the requirement of frequency. But, in addition, there have been numerous and frequent interlocutory proceedings and decisions have been called into question: Teoh v Hunter's Hill Council (No 8) [2014] NSWCA 125.
It is clear that if he is permitted to do so, Batterham (either alone or through a corporate alter ego) will continue to hound Nauer with legal proceedings in connection with the same grievance for which proceedings there cannot be a reasonable basis. If he is permitted to do this, he will bring about a significant wastage of judicial resources. Leaving aside the personal position of Nauer, it is in the public interest that Batterham be prevented from doing this.
There are significant outstanding costs orders against Batterham which will not be met. Permitting Batterham to continue will require Nauer to incur legal costs which will never be recovered. This is harassment and significant detriment.
This is an appropriate case in which to make an order against Batterham prohibiting him from instituting proceedings in New South Wales against Nauer.
The effect of this order is that another person, including any of his companies, may not, acting in concert with him, institute proceedings without leave of the Court.
I order, under s 8(7) of the Vexatious Proceedings Act 2008 (NSW), that Peter James Batterham be prohibited from instituting proceedings in New South Wales against Marcel Andre Nauer.
[3]
Amendments
18 August 2020 - Para 16 spelling error
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Decision last updated: 18 August 2020